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KENNETH ARNOLD JOHNSON v. REBECCA ANN ALLEN JOHNSON

OCTOBER 11, 1989

KENNETH ARNOLD JOHNSON
v.
REBECCA ANN ALLEN JOHNSON



BEFORE DAN M. LEE, P.J.; PRATHER AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Today's appellant asks that we review a chancery court's divorce decree and incident thereto the court's exercise of its equitable discretion in dividing marital assets and providing future support and maintenance of the wife and children. We find the decree sensitive to the particular facts before the Court and the relative needs of the affected persons. We affirm.

 II.

 On January 22, 1971, Kenneth Arnold Johnson and Rebecca Ann Allen Johnson were married in Walthall County. Of this marriage four children were born: Joy Denice Johnson, born February 9, 1974; Buffie Roseann Johnson, born September 7, 1976; Heather Dawn Johnson, born July 15, 1979; and Kenneth Arnold Johnson,

 Jr., born November 10, 1981.

 Over the years the parties experienced more than occasional domestic intranquility. On January 22, 1987, their sixteenth wedding anniversary, Rebecca and Kenneth had quite a squabble at the end of which Rebecca says Kenneth cursed her, threw her about six feet onto the floor and jumped on top of her. He then made a fist and threatened to hit her, but stopped short as the four children were, by this time, crying and screaming hysterically, the proverbial last straw, Rebecca says. The next day Rebecca moved out.

 Four days later, Kenneth filed a complaint in the Chancery Court of Walthall County, Mississippi, asking temporary and permanent custody of the children. Kenneth's grounds were that Rebecca "deserted the marital domicile for no cause, and has, to date, not been heard from by Plaintiff [Kenneth]."

 Rebecca filed an answer and counterclaim, admitting that she had left the marital home, but stating as her reason Kenneth's abusive behavior. In her counterclaim Rebecca asked for divorce on grounds of habitual cruel and inhuman treatment, for custody of the four minor children, child support, alimony, costs and attorney's fees. Rebecca subsequently amended her counterclaim and sought a division of the parties' personal property and a sum of money for her interest in the real property accumulated during the course of the marriage.

 On May 27, 1987, the case went to trial. In addition to the incident described above, Rebecca told of other times when Kenneth was physically violent toward her. More relevant to today's issues, the evidence reflected that in October of 1982 Kenneth, who had worked as a truck driver, sustained a back injury in an accident. Kenneth had thereafter asserted a tort claim and in the end had received a settlement of approximately $220,000.00. He has a twenty percent permanent partial disability. At the time of Kenneth's injury the Johnsons lived in a modest home sitting on a two-acre lot which they held as joint tenants with rights of survivorship. They had purchased the home in 1981 for $35,000.00 of which $31,500.00 had been financed. Following receipt of his settlement, Kenneth paid off the balance of the first mortgage on the home and, in addition, invested a substantial sum in renovations and improvements to the home. *fn1 Kenneth was unable to resume his job as a truck driver, and, after he recovered he purchased an interest in A-1 Heating and Cooling, an air conditioning business in McComb, in part with the proceeds of his settlement. Kenneth also bought sixteen acres of land adjacent to the home and a 1986 Massey Ferguson tractor. In consequence of these purchases and other odds and ends expenditures, none of the settlement money is left.

 By judgment entered August 28, 1987, the Court granted Rebecca's divorce on grounds of habitual cruel and inhuman treatment, Miss. Code Ann. 93-5-1 [Seventh] (1972), and placed the four children in her custody subject to reasonable visitation rights in Kenneth. The Court ordered Kenneth to pay child support of $80.00 per week for the support of all of the children together and, in addition, ordered Kenneth to procure and maintain hospital and medical insurance for the children and to pay one-half of all hospital and medical expenses not covered by insurance. The Court awarded no alimony as such but did order the marital domicile and the two-acre lot on which it sits appraised by Doug Rushing Realty of Tylertown and then directed the Chancery Clerk to hold a sale of the property. Of significance, the Court ordered that

 After the filing of the appraisal, the sale is to be held in abeyance for thirty (30) days in order for the parties to attempt to work out a mutually acceptable division of said property. If an agreement is not reached within thirty (30) days, the sale will be held by the special commissioner.

 The Court then ordered that after deduction of all costs of sale, the proceeds "shall be divided ...


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